In a recent open court, an attorney representing Immigration and Customs Enforcement (ICE) declared that it will cease the terminations of the Student and Exchange Visitor Information System (SEVIS) records of F-1 academic students and M-1 vocational students that have recently occurred in significant numbers. These terminations were typically on the basis of a foreign national student’s interaction with a law enforcement authority. ICE will also restore the SEVIS records of students whose records were previously terminated. SEVIS is a database used by ICE to monitor a foreign student’s presence and attendance at school in the United States and a student’s SEVIS record must be maintained as active for the student to be allowed to remain in the United States.
Thus far, ICE has terminated the SEVIS records of approximately 4,700 foreign students based upon searches of the National Crime Information Center (NCIC) which indicated that they had been involved in an encounter with a law enforcement authority. Often such an encounter involved a speeding ticket or a similar low-level offense and in many cases, charges were either not brought or were dismissed. Under federal regulations, F-1 status may typically be terminated only on the basis of a conviction for a crime of violence with a sentence of a year or more. The ICE representative noted the following:
“ICE is developing a policy that will provide a framework for SEVIS record terminations. Until such a policy is issued, the SEVIS records for plaintiff(s) in this case (and other similarly situated plaintiffs) will remain active or shall be reactivated if not currently active, and ICE will not modify the record solely based on the NCIC finding that resulted in the recent SEVIS record termination[.]”
“ICE maintains the authority to terminate a SEVIS record for other reasons, such as if the plaintiff fails to maintain his or her nonimmigrant status after the record is reactivated or engages in other unlawful activity that would render him or her removable from the United States under the Immigration and Nationality Act,” the attorney stated.
The announcement and apparent concession appear to be a response to the more than 100 lawsuits that have been filed against ICE since the SEVIS termination policy was introduced. The announcement also signals a recognition that these students’ lawsuits are likely to succeed, given the weakness of the legal mandate for implementing such terminations on the basis of the minor encounters with law enforcement. Federal judges in a number of states have issued more than 40 emergency orders blocking ICE officers from unilaterally terminating SEVIS records and thereby forcing students to leave the country.
Although an F-1 or M-1 student whose SEVIS record was previously terminated and has now been restored may remain in the United States and continue to attend school, the restoration of a student’s SEVIS record will not reinstate a visa that has been revoked by the U.S. Department of State. A student whose visa has been revoked who wishes to travel internationally must first travel overseas and obtain a new visa before being allowed to enter the United States.
This announcement by ICE is obviously a welcome development, but it is likely that the current administration is studying alternative methods to restrict or prohibit foreign national students’ ability to remain in the United States. The situation should therefore be considered a fluid one and we will monitor all developments on a continuous basis.
